Update Will After Divorce: What Happens and What You Must Do

Your divorce is final. Your old will still names your ex-spouse as executor, beneficiary, or both. What happens next depends entirely on where you live — and in Scotland, the rules create a dangerous gap most people never see coming.

What the Succession (Scotland) Act 2016 Does Automatically

Under Section 1 of the Succession (Scotland) Act 2016, once your extract decree of divorce is granted, Scots law treats your former spouse as if they had predeceased you. Three things happen automatically:

• Any legacy or bequest left to your ex-spouse falls away
• Any appointment of your ex-spouse as executor or trustee is revoked
• Guardianship provisions for your children remain valid (the sole exception)

This sounds reassuring. Your ex won't inherit — at least not once the divorce is finalised.

The Separation Exposure Window Nobody Warns You About

Here's what catches people: separation does not trigger these protections. Until that final extract decree lands, you remain legally married. If you die during the separation period:

• Your existing will remains fully active — your estranged spouse inherits everything you left them
• If you have no will, your ex-spouse claims "prior rights" and "legal rights" under Scots intestacy, which frequently consumes the entire estate
• Even if you write a new will during separation excluding your ex, they can still claim "Legal Rights" — one-third of your net moveable estate (or one-half if there are no surviving children)

Legal Rights cannot be defeated by a will. They're a statutory entitlement that only ends when the marriage officially dissolves.

What to Do Immediately After Separation

Don't wait for the divorce to come through. Draft a new will as soon as you physically separate:

Remove your ex-spouse as executor. If you don't name a substitute and your ex is later revoked by the 2016 Act, your family must apply to court for an "executor-dative" — an expensive, time-consuming process.

Name new beneficiaries explicitly. The 2016 Act revokes gifts to your ex, but if your entire estate was left to them with no alternative beneficiaries named, you're effectively intestate.

Address survivorship destinations. If your property title includes a survivorship clause ("A and B and the survivor of them"), your half-share automatically passes to your ex on death — regardless of what your will says. You must evacuate this destination by having a solicitor draft a deed of evacuation, signed by both parties and registered with the Land Register of Scotland.

Register your new will. The Books of Council and Session charges £20 to register a will, giving it immediate legal force and creating a permanent, retrievable copy.

The Overriding Provision Trap

One technical point: you can override the automatic revocation of the 2016 Act by inserting an express clause stating your ex-spouse should benefit "even if the marriage is terminated." If your ex's solicitor has inserted this language during negotiations, it survives divorce. Check your existing will carefully for any such clause.

Your Estate Protection Action Plan

1. Draft a new will naming a fresh executor and new beneficiaries — do this within days of separation, not after the decree
2. Evacuate any survivorship destination on jointly-owned property (solicitor + Land Register registration)
3. Update your Expression of Wish forms on all pensions and life policies (these sit outside your will entirely)
4. Register the new will in the Books of Council and Session (£20)
5. Review and revoke any Powers of Attorney that name your ex-spouse

The Scotland After-Divorce Checklist walks you through every estate protection step in sequence, including template letters for each institution and a timeline that prevents the most common separation-period mistakes.

Don't Assume the Law Protects You During Separation

The Succession (Scotland) Act 2016 is powerful — but only after divorce. During the months or years of separation that precede it, your estate is fully exposed. A new will costs a fraction of what your family would pay in legal fees to untangle an outdated one after your death.

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